State v. Murtaugh

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. MURTAUGH
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
JASON M. MURTAUGH, APPELLANT.
Filed January 10, 2023. Nos. A-21-911, A-21-914.
Appeals from the District Court for Sarpy County: NATHAN B. COX, Judge. Affirmed.
Jason M. Murtaugh, pro se.
Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.
PIRTLE, Chief Judge, and RIEDMANN and ARTERBURN, Judges.
RIEDMANN, Judge.
INTRODUCTION
Jason M. Murtaugh appeals the order of the Sarpy County District Court denying his
motion for an order nunc pro tunc. Murtaugh sought an order nunc pro tunc to add time served
credits to his sentence. Since an order nunc pro tunc is not the proper vehicle to obtain the relief
sought, we affirm the district court’s denial of Murtaugh’s motion.
BACKGROUND
Murtaugh pled no contest in two separate cases, case No. CR 18-471 and case No.
CR 19-81, resulting in convictions for two counts of attempted theft by deception ($5,000 or
more). Pursuant to his plea agreement, he was sentenced on February 5, 2019, to concurrent terms
of 5 years’ probation for each conviction.
A year later, the State moved for Murtaugh’s probation to be revoked in both cases. At the
August 12, 2020, hearing on the probation violations, Murtaugh admitted to violating his probation
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and the court granted the motions for revocation. Bond was set, which included numerous
conditions, including that Murtaugh participate in pretrial services and wear a GPS monitor.
At sentencing on October 5, 2020, the district court sentenced Murtaugh to 1 year
incarceration for case No. CR 18-471 with 18 months’ post-release supervision and gave him 10
days’ credit for time served. For case No. CR 19-81, the district court sentenced Murtaugh to 1
year incarceration with 18 months’ post-release supervision and gave him 11 days’ credit for time
served. The district court ordered that both sentences be served consecutive to any other sentence
Murtaugh was currently serving. Murtaugh did not file a direct appeal.
On June 7, 2021, Murtaugh filed a motion for an order nunc pro tunc, in which he argued
that the district court improperly calculated his time served credits, and that he was entitled to
credit for an additional 58 days. In an amended motion for an order nunc pro tunc, Murtaugh
incorporated his prior arguments, and raised an additional one. He argued that serving 15 months
of his probation should apply to his new sentence, otherwise it would violate the Double Jeopardy
Clause of the U.S. Constitution. He also claimed that during the oral pronouncement of his
sentence, the district court stated his sentence for case No. CR 18-471 was to run concurrent with
his sentence in case No. CR 19-71.
The district court found no merit in his arguments and denied his motion. Murtaugh
appeals.
ASSIGNMENTS OF ERROR
Rephrased, Murtaugh assigns two errors: the district court committed substantive due
process errors in (1) failing to allocate time served credit under Neb. Rev. Stat. § 83-1,106(1)
(Reissue 2014) for the time he spent out on bond and (2) failing to credit his time on probation as
time served for his sentence of imprisonment.
STANDARD OF REVIEW
Whether a defendant is entitled to credit for time served and in what amount are questions
of law, subject to appellate review independent of the lower court. State v. Wines, 308 Neb. 468,
954 N.W.2d 893 (2021).
ANALYSIS
Murtaugh argues that the district court should have credited him for the 58 days he was out
on bond after his probation was revoked on August 12, 2020, until October 5 when he was
sentenced. He contends that the harsh restrictions upon his liberty during this time period amounted
to him being in custody for purposes of the time credit statute under § 83-1,106(1). He also argues
that the district court violated the Double Jeopardy Clause of the U.S. Constitution by not crediting
his days serving probation (February 5, 2019 to August 12, 2020) toward his new sentence. Before
we address the merits, we must first determine if a motion for an order nunc pro tunc is the proper
vehicle to bring Murtaugh’s claims.
A court has inherent power in a criminal case to correct its records to reflect the “truth,”
nunc pro tunc. State v. Bol, 288 Neb. 144, 846 N.W.2d 241 (2014). The purpose of an order nunc
pro tunc is to correct a record that has been made, so that it will truly reflect the action, which
through inadvertence or mistake, was not truly recorded. Id. It is not the function of an order nunc
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pro tunc to change or revise a judgment or order, to set aside a judgment actually rendered, or to
render an order different from the one actually rendered, even if such order was not the intended
order. Id. An order nunc pro tunc can correct clerical errors but cannot correct judicial errors. Id.In State v. Al-Hafeez, 208 Neb. 681, 305 N.W.2d 379 (1981), the defendant, who had
already been convicted and sentenced 10 years prior, sought an order nunc pro tunc to receive
credit for serving 88 days in jail while he awaited trial. He argued the district court erred by finding
it did not have the authority to issue an order nunc pro tunc to amend his sentence, and that not
crediting him the 88 days violated the Equal Protection Clause of the U.S. Constitution. Id. The
Nebraska Supreme Court held that since there was no mistake shown in the district court’s sentence
and the district court had no power to grant the defendant’s request as stated, his first claim failed.
Id. It declined to address his constitutional argument, holding that “the limited remedy available
in an application for an order nunc pro tunc will not be extended to question the constitutionality”
of the district court’s actions. Id. at 683, 305 N.W.2d at 379. Instead, an order nunc pro tunc is
limited to the specific purpose that the record should be corrected to accurately reflect what
actually happened in the proceedings. Id.The holding in State v. Al-Hafeez, supra, disposes of Murtaugh’s appeal. Through a motion
for order nunc pro tunc, Murtaugh sought to challenge the district court’s calculation of credit for
time served both on a statutory and constitutional basis. But a district court’s inherent power to
correct the record with an order nunc pro tunc does not extend to alter the actions of the trial court
based upon its interpretation of statute or the Constitution. An order nunc pro tunc offers a specific
and limited remedy for clerical errors, so Murtaugh cannot use it to amend a judgment without
alleging a clerical error. See State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (2009) (holding when
sentence is validly imposed, trial court cannot modify, amend, or revise during term of imposition).
Furthermore, a district court’s power to adjust sentencing on collateral attacks is narrow, and to
extend this power to consider sentence revisions with an order nunc pro tunc would contradict
settled law. See State v. Barnes, 303 Neb. 167, 927 N.W.2d 64 (2019) (holding district court had
no authority to hear motion for jail credit because only void sentences can be collaterally attacked).
Akin to State v. Al-Hafeez, supra, Murtaugh does not argue a clerical error was made when
he was sentenced; therefore, a nunc pro tunc motion was an improper vehicle to seek the relief
requested. Accordingly, the district court’s order denying Murtaugh’s motion for an order nunc
pro tunc is affirmed.
CONCLUSION
Because the limited remedy available in a motion for an order nunc pro tunc will not be
extended to question the statutory or constitutional interpretations made by the trial court, the
district court’s order denying Murtaugh’s motion is affirmed.
AFFIRMED.
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